When parents separate and need to make parenting arrangements for their child, it can be one of the most emotive and complex legal battles to resolve. In a recent family law case relating to shared parenting responsibilities, the conduct of both parents was questioned, with accusations of ‘family violence’ on both sides. This case highlights how legislation categorises certain behaviours as family violence and shows the importance of the context in which a parent’s conduct has occurred when it comes to a Court determining what is in the best interests of a child. Attwood Marshall Lawyers Family Law Associate, Emily Edmonds, reviews the case.
Parenting responsibilities, coercive control, and family law
In Wilson & Carter [2022] FedCFaCFamC1F 216 (8 April 2022), two parents applied for parenting consent orders to determine what arrangements would be in place for their 6-year-old-son.
The parties had reached an agreement about who their son would live with and how his time would be shared between both parents. The judge made consent orders upon their request.
The Parenting Orders stated that:
- The child was to live with his mother;
- The child was to spend time with his father each Monday after school (except for public holidays);
- For the 2022 school year, the child was to spend time with his father each Saturday until the commencement of school the following Monday;
- From the 2023 school year, the child was to spend each alternate weekend from the conclusion of school on Friday until the commencement of school the following Monday.
- The child was also to spend time with his father on special occasions and during school holidays;
- The school holidays would be shared equally between both parents.
Despite parenting arrangements being agreed upon, a dispute remained in relation to the issue of parental responsibility. The father sought to have equal shared parental responsibility for decisions concerning the major long-term issues for the child. However, the mother sought an order that she be solely responsible for all decisions concerning the major long-term issues for the child.
Upon reviewing the matter, the judge concluded that it would be in the best interests of the child for both parents to share equal responsibility.
The mother appealed the decision in Carter & Wilson [2023] FedCFamC1A 9 (10 February 2023). She alleged physical violence by the father.
At first instance, the Court found that the father had engaged in one act of physical violence against the mother, and he had also held his hand over the mouth of his daughter (of a previous relationship) to stop her from screaming. This act did result in an Apprehended Domestic Violence Order being issued against the father at the time. Following the incident, the father stopped spending time with his daughter.
The father conceded that his behaviour constituted family violence.
The Court also found that the mother, who had insisted on supervised time and had at times withheld her son from paternal time, was demonstrating controlling behaviour of a family member, which under the Family Law Act s4AB(1), is considered family violence.
On appeal, the mother contested the finding that she had engaged in family violence.
“The primary judge found that the mother had engaged in family violence because she “initially” prevented the child from spending time with the father and, in doing so, “controlled [the child] and controlled his relationship with the [father]. That control, the primary judge found, prevented the child from keeping connections with his family, namely his father.”
“The mother’s behaviour in restricting time between the father and the child could be behaviour caught by s4AB of the Act as behaviour which is controlling without being coercive. However, conduct does not amount to family violence simply because the primary judge labels it thus. In determining whether a party has engaged in a pattern of coercive or controlling behaviour, context is important. “
“As observed in Helbig & Rowe and Ors [2016] FamCAFC 117, a finding that a party has engaged in such conduct will generally require a description of what was said and done and the context in which the conduct occurred.”
“There is no analysis of evidence or reasoning by the primary judge as to why the mother’s behaviour around the child spending time with the father ‘initially’ (or otherwise) is evaluated as behaviour that controlled the child in the sense contemplated by s4AB(1) as family violence.”
“On the facts of this case, relevant context included the circumstances in which the mother had herself been the subject of actual physical violence at the hands of the father.”
“There is, with respect, force in the submission by the Independent Children’s Lawyer (ICL) that to characterise the uncontextualised behaviour of the mother in this case as family violence within the meaning of the Act, risks family violence being alleged in virtually every case where a party has genuine concerns regarding a child spending time with the non-resident parent. It cannot sensibly be contended that the definition of family violence was intended to apply to such circumstances.”
“In the context of the facts and circumstances of this case, the conduct of the mother in limiting the amount of time that the child spent with the father could not reasonably be determined to be coercive or controlling conduct for the purposes of s 4AB(1) of the Act.”
“In that respect, there was no finding that the mother’s concerns for the welfare of the child were anything other than genuine in the context where she had herself been the subject of one violent assault by the father.”
Although the judge noted that the primary judge had made an error in labelling the mother’s behaviour as family violence, this fact did not ultimately affect the outcome of the case which was to determine shared parental responsibility. For this reason, the appeal was dismissed, and costs certificates were granted.
The definition of family violence in the Family Law Act 1975
The Family Law Act 1975 defines family violence as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.”
Examples of family violence include (but are not limited to):
- Assault (including physical and sexual assault)
- Stalking
- Repeated derogatory taunts
- Intentional damage or destroying of property
- Intentional injury or death to an animal
- Denying the family member financial autonomy that they should otherwise have
- Withholding financial support needed to meet the reasonable living expenses of the family member, or their child, at a time when the family member is entirely or predominantly dependent on the person for financial support
- Preventing the family member from making or keeping connections with their family, friends, or culture
- Depriving the family member of their liberty
- Exposing a child to family violence such as putting a child in a position to overhear threats of death or injury to a family member or allowing a child to see or hear an assault of a member of their family.
Understanding coercive control
Section 4AB of the Act is drafted using very wide terms to catch behaviour which is thought to be undesirable. The section also catches behaviour which is both acceptable and necessary (for example, exerting control over a child in the exercise of the parenting powers).
‘Coercive control’ is a technical phrase in social science literature. It is a concatenation of coercive behaviour and controlling behaviour and is a subcategory of one or both types of behaviour. Whilst the term ‘coercive control’ has been attributed a legal definition in legislation in some jurisdictions, s 4AB of the Act does not do so.
If the legislature intended to provide a definition of ‘coercive control’, it would have done so. The very wide definition the Act, coupled with the non-exhaustive list of behaviours, conveys an intention of width. When this definition is interpreted and its application to a particular set of facts considered, there needs to be a consideration of whether the application of the definition meets the purpose of the statute.
A finding of family violence is a conclusion which must be based on an evaluation of evidence. Some situations will require a more detailed evaluation than others. Behaviour, which is subtle or comprised of common, everyday behaviours is likely to require a greater degree of context to qualify as family violence under s 4AB than would, say, behaviour to which no ambiguity attaches.
Key takeaways
This case indicates the Courts preparedness to regard a parent withholding a child from the other parent or significantly limiting their time with the other parent (when a genuine concern does not exist in relation to the care and welfare of the child) to be controlling behaviour and therefore, family violence. Obviously, the context in which the conduct occurs is all important. In this instance, on appeal, it was found that the mother did not engage in family violence as there was a genuine concern for the child’s welfare.
This is a very topical issue, and this case highlights the fact that a Court may find a party has engaged in family violence if they choose to withhold a child from seeing or spending time with the other parent.
As with all complex family disputes, it is imperative to seek advice from an experienced family lawyer when negotiating and agreeing on parenting arrangements.
A family lawyer will be able to help you understand your rights and obligations under law and guide you to a resolution that is in the best interests of the child.
Attwood Marshall Lawyers – helping families reduce conflict and resolve disputes effectively
Our family lawyers are experienced in handling all types of parenting matters and do so with care and compassion. We understand that when parents are facing contentious disputes about their children, it can be heart-wrenching and overwhelming to try to come to a mutual agreement.
We can help parents establish a parenting plan, or parenting order, so that all parties can move on with their lives and the best interests of the children are met.
Our family lawyers are at the top of their field, and practice exclusively in this complex area of law. The team can also assist with divorce applications, property settlements, binding financial agreements, and domestic and family violence matters.
For advice and assistance with a family law matter, please contact our Family Law Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071.
Our family lawyers are available for appointments at all our office locations at Coolangatta, Robina Town Centre, Southport, Kingscliff, Brisbane, Sydney and Melbourne.
